Executive Session

EXECUTIVE SESSION -- (Senate - September 28, 2005)

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Mr. THUNE. Mr. President, I rise today to voice my strong support for the nomination of Judge John G. Roberts to be Chief Justice of the United States. This is a historic moment, Mr. President, as many of my colleagues have already noted. This moment marks only the 17th time in the history of our Republic that the U.S. Senate has considered a nominee to be Chief Just1ce.

As one of the Senate's newest Members, it is a great privilege for me to participate in this process. To have had only 16 individuals lead the judicial branch of government in our history illustrates the most important characteristic of the judicial branch, and that characteristic is lifetime tenure.

I believe the guiding question for each of us in determining a nominee's fitness for this post should be whether the person is dedicated to applying the Constitution to every case considered by the Court, and not adding to or changing the Constitution's text to suit his or her own personal policy preferences.

I was pleased to have met privately with Judge Roberts just yesterday. I came away from that meeting even more convinced that this man has the ability and temperament necessary to lead the Supreme Court. I believe Judge Roberts is dedicated to the rule of law and the principle of judicial restraint, and most importantly, will not substitute his own policy preferences for those of the elected representatives in the executive and legislative branches of our government.

The Supreme Court gets the last word on some of the most challenging and divisive issues of our day. Because Federal judges and justices have lifetime tenure, we must ensure that those who populate Federal bench are people of strong character and high intellect, with a passionate commitment to applying the law as it is written, rather than legislating from the bench.

Judges and justices must say what the law is, not what they believe it should be. That is the job of the Congress. That is what the authors of the Constitution intended.

I believe Judge Roberts' career embodies these principles. As Judge Roberts stated during his hearing, judges are like umpires, and umpires don't make the rules, they apply them. I do not believe Judge Roberts will engage in the judicial activism that we have witnessed on the Supreme Court and the lower Federal courts in the past few decades.

Even in the recent past, we have witnessed several instances of judicial activism. Judicial activism manifests itself when justices detect ``penumbras, formed by emanations'' in the Constitution, as Justice Douglas did in the case of Griswold v. Connecticut--in other words, judges who rely on their personal views rather than the Constitution when deciding matters of great importance.

We have seen what damage the Supreme Court is able to do when it is composed of individuals who are not committed to judicial restraint. Instead of acting as umpires and applying the law, some on the Supreme Court and the Federal bench are pitching and batting.

The most recent example came in the case of Kelo v. City of New London, decided just this past June. As you know, Mr. President, the Constitution says the government cannot take private property for public use without just compensation. However, in the Kelo case, the Supreme Court emptied any meaning from the phrase ``for public use'' in the fifth amendment.

In Kelo, the Supreme Court held that a city government's decision to take private homes for the purpose of economic development satisfies the ``public use'' requirement of the fifth amendment. This case makes private property vulnerable to being taken and transferred to another private owner, so long as the government's purpose for the taking is deemed ``economic development.''

While I understand that many of the principles reflected in the Constitution are written broadly, and sometimes can be subjected to conflicting interpretations, I think we can all agree that the Supreme Court cannot be adding or deleting text from the Constitution. Yet that is what happened in the Kelo case. The majority effectively deleted an inconvenient clause in the fifth amendment.

The Supreme Court is also engaging in a troubling pattern of relying upon international authorities to support its interpretations of the laws of the United States. In Atkins v. Virginia, the Court cited the disapproval of the ``world community'' as authority for its decision. In Lawrence v. Texas, the Court cited a decision by the European Court of Human Rights as authority for that decision. Most recently, in Roper v. Simmons, the Court cited the U.N. Convention on the Rights of the Child--a treaty never ratified by the United States--as authority for that decision.

Article II, section 2 of the Constitution requires two-thirds of the Senate to ratify a treaty. Democratically elected Members of the Senate, accountable to the people, have refused to ratify the U.N. Convention on the Rights of the Child.

Unfortunately the Supreme Court chose to ignore this fact and based their judgment in part on a treaty never ratified by the United States. Clearly, some on the Supreme Court are substituting the policy preferences of democratically elected representatives with their own. This is judicial activism at its worst.

As we near the completion and expected confirmation of Judge Roberts, I want to take a moment and look ahead as the President will soon make another nomination to the Supreme Court. It is important that the nominee to replace Justice O'Connor share Judge Roberts' commitment to judicial restraint and dedication to the rule of law. It is important because the Supreme Court will be considering several cases in the near future that may have far-reaching consequences.

The Supreme Court will probably consider the Pledge of Allegiance case that was recently decided in the Ninth Circuit at the district court level. In that case, the district court held that the words ``under God'' in the Pledge of Allegiance violate the establishment clause of the first amendment. However, in the Fourth Circuit, the appellate court came to the opposite holding--that the Pledge of Allegiance did not violate the establishment clause. Where there are conflicting holdings in the lower courts, the Supreme Court must become the final authority on the matter, and it is important that Judge Roberts and individuals who share his approach are on the court to confront this issue.

During the next term, the Supreme Court will also consider a case about a State's parental notification law and possibly a case about partial-birth abortion. Again, these are instances where the Supreme Court will have the last word on one of the most divisive moral issues of our time. It is critical that those who confront these cases are deferential to the elected branches of our government, exercise restraint, and follow the law.

After our confirmation vote tomorrow on Judge Roberts, the President will forward his nominee to fill the seat vacated by Justice O'Connor. It will then become our duty in the Senate to provide our advice and consent on that nomination. It is a responsibility that we should all take very seriously. The manner in which we handle that nomination will say a lot about the Senate as an institution.

I read in today's edition of the Washington Post that several of our Democratic colleagues, as well as the Democratic National Committee chairman, are already threatening to filibuster the next nominee to the Supreme Court. It is shocking to me that they are threatening a filibuster of the next nominee before they even know who the nominee is going to be. They are even threatening to filibuster possible nominees who were just confirmed to the appellate courts and explicitly included in the Memorandum of Understanding that seven Democrats and seven Republicans signed onto last May.

That is wrong and the American people will see it for the blind partisanship that it is. I would remind my colleagues on the other side of the aisle that they have sworn to uphold the Constitution through their representation in this body, not to thwart its intent or reshape its application to suit the nattering liberal elite and their special interest groups. I implore my Democratic colleagues not to blindly abuse the filibuster. These threats are symptomatic of the breakdown of the nomination process, and they must stop.

The process by which justices and judges are nominated and confined has degenerated to a point where ideological litmus tests are too often applied and nominees are torn apart by personal attacks.

The nomination process should not be brought down to the level of personal attacks on the nominee or fishing expeditions into the nominee's political allegiances. I believe there is a lot of room for improvement in the process, and I hope to see such improvement as we consider the next nominee.

One ideological litmus test I am hearing about a lot these days is that the Supreme Court must somehow maintain its ``balance.'' Where in the Constitution does it say that a certain balance must be maintained on the Supreme Court? According to the Constitution, the President is entitled to nominate the individuals he desires to have on the courts, and we in the Senate must determine whether the nominee is fit and qualified. There should be no ideological litmus test for nominees. If a nominee is fit and qualified, he or she should be confirmed.

I believe Judge Roberts is eminently fit and qualified to serve as the next Chief Justice. I will proudly cast my vote for him, and I urge my colleagues to do the same.

Thank you, Mr. President. I yield the remainder of my time.

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